Q: How to deal with a labor dispute between a foreigner without employment/work permit and his/her employer in China?

A: If such dispute meet the condition for acceptance as a civil cases, China court will accept and hear it as civil case not as a labor case.

Explanation:

It was the direct provision, which governed such dispute, issued by the Shanghai Court.

At the joint meeting between ShenzhenCourt and Shenzhen Labor Bureau, the meeting thought, if such dispute would be heard as labor case by court, which would encourage illegal employment, as a result, such dispute should be heard as civil case if the dispute met relevant conditions of acceptance.

On the other hand, with the increasing opening of reform and expansion between China and foreign countries, there would be more and more such employment disputes. Taking into account of the actual situation, the meeting thought it unreasonable if such disputes would be denied or declared to be invalid, so the meeting decided such disputes should be heard directly by the court without prior arbitration.

According to Article 2 of Labor Law of China, This law applies to all enterprises and individual economic organizations (hereinafter referred to as employing unites) within the territory of the People’s Republic of China, and labourers who form a labor relationship therewith. A foreign individual without employment permit would no be treated as one legal labor party. But if such dispute happened, the court would hear such dispute as civil case because two parties of such dispute had equal position.

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